Citation Nr: 1301256
Decision Date: 01/11/13 Archive Date: 01/16/13
DOCKET NO. 03-30 255 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia
THE ISSUE
Entitlement to service connection for degenerative disc disease of the lumbosacral spine.
REPRESENTATION
Veteran represented by: David L. Huffman, Attorney
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
S. Heneks, Counsel
INTRODUCTION
The Veteran served on active duty from August 1989 to August 1992.
This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.
In January 2005, the undersigned Veterans Law Judge (VLJ) held a hearing on this matter. A transcript of this personal hearing is in the Veteran's claims folder. This claim was remanded for further development in March 2005 and June 2009.
In July 2012, a different VLJ held a hearing on six separate issues. As the undersigned in this matter has not taken testimony on these six issues, they will be the subject of a separate rating decision that will be issued simultaneously with the matter reflected above.
The record reflects that the Veteran submitted additional evidence that has not been reviewed by the RO. By an August 2012 statement, his accredited representative related that he was waiving the right to have this additional evidence reviewed by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required.
REMAND
In the June 2009 remand, the Board requested the RO to provide the Veteran with proper notice and to obtain his worker's compensation records. The Veteran was provided with proper notice and his worker's compensation records have since been associated with the claims file. In light of the evidence received since the last remand, however, the Board concludes that another remand for a VA examination is necessary. 38 C.F.R. § 3.159(c)(4)(i) (2012).
The Veteran contends that he has a low back disability from lifting a generator out of a truck in 1990 during his service. He asserts that he was hospitalized and received treatment for his back pain. The Veteran testified that he did not seek treatment again for his back pain until 1992 and 1993 during Reserve service when he began to have problems with his back again.
The medical evidence of record reflects that during a November 1994 Gulf War VA examination, the Veteran reported low back aches. An x-ray reflected essentially a negative lumbar spine. Service treatment records dated in 1996 when the Veteran was on Reserve duty reflect that the appellant reported that in 1990 he injured his back after lifting a tank generator and was hospitalized and given physical therapy.
August 2000 private treatment records from Dr. C. Baer contained a MRI of the lumbar spine which showed multilevel lumbar spondyloarthropathy. The assessment was chronic low back pain over nine years of an uncertain etiology.
The Veteran had a VA examination in connection with this claim in March 2008. The examiner opined that the Veteran's low back disability was at least as likely as not caused by the lumbar strain injury during service. The examiner reasoned that that the Veteran had a documented low back injury while in service and has demonstrated a continuation of chronic mechanical back pain from that point.
In February 2009, an addendum to the March 2008 opinion was requested because the examiner did not indicate if the Veteran's service treatment records were reviewed. The examiner noted that no service treatment records from the time of the Veteran's injury in 1990 were available. The examiner stated that it could not be established "without doubt" (sic) that the Veteran actually injured his back during service time. Based on the medical evidence, the examiner stated that he could not resolve the question without resorting to mere speculation.
In December 2011, the Veteran submitted records pertaining to a 1996 worker's compensation claim. In an October 1996 letter, Dr. T.A. Pasha stated that he first saw the Veteran in September 1996 after he injured his back pulling a cart of mattresses weighing over 200 pounds. The Veteran provided a previous history of a back injury in 1990 after lifting heavy objects. It was noted that the Veteran received treatment for the 1990 injury and recovered fully without any recurrence since then until the 1996 injury. The impression in 1996 was an acute lumbosacral sprain. An MRI scan showed narrowing of the disc space at the L-5 and S-1 level and a small protrusion of the disc at this level which could have been the cause of his pain. Dr. Pasha also indicated that the finding could have been aggravated by the Veteran's recent injury.
The Board concludes that in light of the competent and credible evidence that the Veteran experienced back pain after lifting a generator during service in 1990, and the evidence received after the June 2009 remand indicating that the Veteran had a post-service back injury in 1996 after pulling mattresses weighing over 200 pounds, a remand is necessary for a VA examination and opinion that considers all the relevant evidence of record. 38 C.F.R. § 3.159(c)(4)(i).
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a VA neurosurgical examination by a physician to address the etiology of any diagnosed lumbar disorder. The examiner is to be provided access to the claims folders, Virtual VA and a copy of this remand in conjunction with the examination. The examination report must include responses to the following:
Based on a review of the claims folder, Virtual VA and the examination findings, including the service treatment records, private treatment reports, VA treatment reports, the examiner must opine whether it is at least as likely as not that any diagnosed lumbar disability is causally or etiologically related to the appellant's in-service symptomatology as opposed to the disorder being more likely due to some other postservice factor or factors. The examiner must address whether any currently diagnosed back disability is at least as likely as not related to a 1990 in-service back injury after lifting a generator. The examiner must also consider the evidence that the Veteran had a post-service back injury in 1996 after pulling mattresses weighing over 200 pounds.
(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)
A clear rationale for all opinions is required and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. It is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012). Hence, copies of all pertinent records in the claims file and on Virtual VA must be made available to the examiner for review.
2. The Veteran is to be notified that it is his responsibility to report for the ordered examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655 (2012).
3. After the development requested is completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once.
4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).